In City of Chicago v. Morales, the Supreme Court struck down Chicago's anti-gang loitering ordinance on void-for-vagueness grounds. As a result, the Court did not answer the question left open by the Illinois Court of Appeals in City of Chicago v. Youkhana of whether the ordinance criminalized the status of being a gang member in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. This Comment considers the question by examining the historical backdrop of status offenses as it relates to both constitutional and common law precedent. In order to determine whether an otherwise constitutional reenactment of the ordinance would nevertheless run afoul of the Eighth Amendment, Brookstein considers the factors courts have weighed in addressing status offenses and their applicability to gang membership. This Comment concludes by proposing an analytical model incorporating the explicit and implicit factors utilized by courts, which can be applied to determine whether gang membership is in fact a status under the Eighth Amendment.

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